ORDER
G.R. Sharma, Member (T)
1. By this reference application, the Commissioner has submitted that the following points of law arise out of the Tribunal’s Final Order No. A/637/97-NB, dated 30-5-1997 :-
“When exempted materials are used in the manufacture of resultant products cleared for export under bond without payment of duty against Advance Licence issued under Import Control Order, 1955 for replenishment of materials, –
(a) Whether such resultant product; were exempt from whole of duty or were chargeable to nil rate of duty by virtue of Imports condition specifying the use of exempted materials.
(b) Whether the credit of duty paid on inputs used in the manufacture of these resultant products which had subsequently been exempted was not recoverable as per Rule 57F(1)(ii) read with Rules 57A, 57C and 57-I of the Central Excise Rules, 1944.
2. Shri P.K. Jain, learned SDR appearing for the Revenue submits that the respondents in this case are manufacturers of soap and were availing Modvat credit under the Modvat scheme. He submits that they availed credit on the inputs obtained indigenously which were used in the manufacture of soap exported under bond under DEEC scheme. He submits that the respondents in their AR-4/Bill of lading had marked export under DEEC/under para 347(1) of the Hand Book Export procedure. He submits that the Advance Licence under DEEC scheme is issued to registered exporters for import of duty exempt materials for export of the resultant products or replenishment of the materials which had gone into the production of the resultant products already exported in anticipation of the grant of Advance Licence. He submits that in the instant case, the respondents received the materials as replenishment materials and that since the respondents had taken Modvat credit on them indigenous materials used in the manufacture of exported soap, they were not entitled to Modvat credit. He submits that the Modvat credit availed by the respondents was not admissible. The ld. SDR submits that Rule 57F(3) provides that the credit of specified duty in respect of inputs used in the final products cleared for export under bond or used in the intemediate products cleared for export in accordance with Sub-rule (2) shall be allowed to be utilised towards payment of duty of excise on similar final products cleared for home consumption on payment of duty. The ld. SDR submits that Notification No. 159/90-Cus., dated 30-3-1990 as per clause (d) provided that the exempted material are to be utilised for the manufacture of resultant product so exported. He submits that the benefit of proviso to Rule 57F(3) to the resultant products cleared under bond without payment of duty and in the manufacture of which the duty paid inputs were used, is not the issue in dispute because for the purpose of export such resultant products were neither exempted from whole of duty nor were leviable to nil rate of duty. He also refers to the para 250 of the Import and Export Policy, 1990-93 and also to the Notification No. 85/87-CE., dated 1-3-1987 to support his contention that the respondents had taken double benefit of Modvat credit of duty, first by taking Modvat credit on the inputs and secondly by importing the goods as replenishment materials without payment of duty.
3. Shri J.P. Kaushik, learned Advocate appearing for the respondents submits that the issue is covered by the decision of this Tribunal in their Final Order No. A/2710/96-NB, dated 16-12-1996 1997 (93) E.L.T. 184 (Tribunal) and also by the decision reported in 1997 (22) RLT 928. He submits that no point of law arises in the instant case and, therefore, prays that the reference application’may be rejected.
4. Heard the submissions of the both sides. Perused the case law. We find that Modvat credit is admissible to the respondents under the Central Excise Rules whereas the duty of customs is leviable under the Customs Act. We also note that the two Acts are distinguishable and self-contained. We also note that the Notification in this regard does not make Modvat credit provisions of Central Excise Rules applicable to such cases. We also find that a correct view has been taken by the Tribunal on the applicability of Rule 57F(3) of the Central Excise Rules, 1944. Since the issue has been correctly decided on the point of law, we, therefore, hold that no point of law arises for reference in the present reference application. In the result, the reference application is rejected.